Recently, a federal court judge ruled that the "don't ask, don't tell policy" in the military was unconstitutional because it interfered with the rights of gays and lesbians to free speech and free association under the first amendment, as well as the right to due process under the fifth amendment. The current, national policy is as follows: If any military personnel are discovered to be engaged in homosexual activites, whether or not they disclose that information themselves or not, and whether that be in the field or in their homes, they can be discharged from the military. In order for the federal court's ruling to become national policy, the injunction will still have to be reviewed by Obama before the injunction can be appealed or not. Some, like US Department of Justice Attorney Paul Freeborne, argue that the Don't Ask Don't Tell policy is a political matter that should be settled in Congress, not by the courts. I beg to differ, Mr. Freeborne. This is a perfect example of judicial interpretation, and I fail to see how this issue, which will become a national issue quite soon, is relevant to our political culture in any serious way. Is this issue political, or simply a matter of interpretation? Should we even be doing away with Don't Ask, Don't tell in the first place?
11 comments:
I think that this is a matter for the judicial branch, because the Constitution already has dealt with this type of issue. The 14th amendment guarantees equal protection under the law to every American citizen, and therefore, discharging gays from the military just because they are believed to be gay, is unconstitutional. Any law that Congress passes against gays in the military will probably be unconstitutional because a certain group of people is being discriminated against. In response to the second question, I do think that "Don't Ask, Don't Tell" should be repealed because asking someone to keep their orientation a secret is in some ways as absurd as asking someone to keep their gender a secret. Of course, these examples are not exactly the same, but they amount to the same idea.
I believe the "don't ask, don't tell policy" IS in fact a huge part of our "political culture", given that that phrase is both broad and vague. What I mean by that is that this issue is a topic frequently brought up in political debates and streamlined through our media, aka "culture". However, that said, the term "political culture" could arguably refer to almost anything, so that does not really prove either being viable to be voted on by congress or by the supreme court. In my opinion, I do not believe that the Don't Ask Don't Tell policy should be voted on in Congress; this is a matter of judicial interpretation ruling if the current military policy is constitutional or not.
Finally, I just want to say that I believe Don't Ask Don't Tell policy is incredibly discriminatory and irrational. It is easier for my mind to grasp the conflict over allowing gay marriage, given it conflicts with their religious beliefs and whatnot (although I do as most residents of the Bay Area completely support gay marriage), but to not allow them to openly fight and defend for our country while being gay? Does it say or infer in any religious text "if one is homosexual, one must not fight for one's country?" Shouldn't we automatically allow anyone willing to put their life on the line for our country be welcome no matter what race/gender/sexual orientation? We're in the 21st century America, we all know homosexuality exists, why muffle and ostracize those that are willing to fight for your safety and existence?
I agree with Alex and Rashmi (and disagree with Mr. Freeborne) that the "Don't Ask, Don't Tell" policy is a matter for the Court and not the Congress. I do believe that the influence of our political culture is somewhat relevant in this issue because there are growing numbers of people in the country who are taking more favorable positions on the issues of rights for non-heterosexual people. I think this has at least somewhat of an influence on the political culture, which tends to affect judicial interpretation, as we have discussed in class. As a result, the judges in the Court may interpret the law and conclude that banning homosexuals from being in the military is unconstitutional. Of course, my understanding of others' opinions is probably biased by my own personal experiences and the mostly liberal opinions of those around me. For me, it is hard to imagine that the Court will make a different decision. Whether or not you support this policy, what do you predict the Court will decide?
*Sarah Hosokawa
I definately agree that the "don't ask, don't tell" policy is something that can and should have its constitutionality decided by the judicial branch.
However, I have to say that this issue is in fact relevant to our political culture and politics, given that it is mandated by a federal bill, and does affect the view of our government's political legitamancy among many.
Also, I think something should be clarified:In his closing statements, Freeborne summarized his argument by saying that he felt that the judicial branch was trying to halt a process that is currently being debated by federal lawmakers.
Perhaps this supposed argument only comes from him upholding the values of his Republican constituents, maybe, but even then his claim that the Judicial branch can't issue nationwide injunctions is absurd, as its been shown in previous cases to have precedences.
We should definately be doing away with DADT, the premise seems absurd. If group cohesion is truly threatened by homophobic soldiers meeting homosexuals, then we might as well vote to remove specific ethnicities to appease the racists and "improve cohesion."
Thank you for clarifying, Daniel. The article certainly did not go into that much detail.
Legally speaking, current case law does not support Rashmi's interpretation of the 14th amendment because all that is required is for the government to show a "rational basis" for the unequal treatment, the same standard of review as applied to laws that discriminate against minors (is there a rational reason to keep minors from getting driver's licenses? Yes, even though mature 15 year olds are disadvantaged.) "Unit cohesion" could potentially meet the rational basis test, and the military is NOT a place where normal Constitutional rights apply in the same way (orders are orders, folks).
This case was decided on different legal grounds (the 1st and 5th amendments).
I'm no fan of the policy as written, but it is even worse as actually enforced because soldiers who didn't tell and made efforts to keep their private lives private have been the subject of gossip and even had fellow soldiers spy on them, find evidence of their sexuality, and end up discharged.
I am not a supporter of the military's anti-gay policy by any means. I believe it is terribly unjust and unnecessary, and should be repealed as soon as possible, but I don't agree with the Supreme Court's argument that it is a violation of "free speech and free association." Homosexual activities, however they are defined, are not a matter of speech in that they are intended to convey any ideas. And I strongly doubt that sexual association was what the authors of the First Amendment had in mind. You could argue that not allowing gay members of the military to come out is a violation of free speech, but this argument does not work on the general prohibition against homosexual activity. A better case could be made on the equal protection clause of the 14th amendment.
Keep in mind that what "don't ask, don't tell" actually means is that people in the military are prohibited from investigating into the sexual orientations of their fellow soldiers, and is actually intended as a measure of protection for gays serving in the military. I believe that while the military's official prohibition on gays in service (which accounts for most of the abuse) should be lifted, the "don't ask, don't tell" policy should be kept in place to protect gay military members from inevitable harassment.
I'm really split on this issue. As a gay person and as an advocate, I'm really torn. I think the original concept of DADT was somewhat noble. I do feel as though the original intent was to protect gays from harassment, and the discharge was sort of the compromise (somewhat like the social contract theory). It obviously morphed into a policy that went from being to protect gays to disallowing open gays to serve, which is wrong. Nevertheless, as Jason (and not the Power Gay), I don't know if this policy's idea is a completely evil thing. I think, like Jack, that people should definitely not be kicked out of the military for being open. But nevertheless, the general guideline is not a horrible thing as my fellow activists think. I think some compromises need to be made and I would definitely trade in my openness as a gay person for protecting from being harassed by my fellow soldiers. That's just me, though. Repealing DADT is (to be completely honest) low on my activist priorities. GAH such a paradox.
Hm, I left a comment on this earlier but it disappeared.
Basically I meant to say that while DADT may be intended in part to prevent harassment of gays in the military, there's something wrong with the way it's enforced (like as Mr. Silton mentioned). If Soldier A spies on Soldier B, finds out he's gay, and reports him, who is to blame? Obviously not Soldier B but it puts the military in an awkward position since there's no clear and easy way to cover it up, so they discharge him. Honestly the "don't tell" part of the policy shouldn't need to be forced. If you're afraid to be harassed, keep it to yourself... by yourself, rather than being forced to.
As for "unitary cohesion" I want agree with what Dan said. This all leads me to believe that a better policy would be "don't ask, deal with it yourself if you tell." I'm not really sure how this all stacks up from a legal standpoint but if DADT (as enforced) turns out to be constitutional due to some technicalities in the 1st, 5th, and 14th amendments I hope it does get revised in some way.
(How do you sign full name? I'm using my Google Account which has my full name listed. Anthony Lu)
You sign your name at the bottom.
-Bobby John
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